2021 (8) TMI 55 - AT - Income Tax

Set off of accumulated unabsorbed losses - scheme of amalagamtion conceived - Shareholding pattern post amalgamation - assessee company was holding only 26% percent of equity shares as on 01.04.2013 which is the appointed dated as per the scheme approved by the Hon ble High Court of Madras - A O held that it is evident that the precondition for amalgamation , i.e. shareholders holding of not less than three-fourths in value of the shares in the amalgamating company becoming shareholders of the amalgamated company was not satisfied, thus assessee is not entitled to the claim of carry forward and set off of loss u/s Sec. 72A - HELD THAT - In this case, the scheme of amalgamation has been approved by the Hon ble High Court of Judicature at Madras under the Companies Act, 1956 w.e.f. 01.04.2013. It is settled law that once amalgamation is approved, the amalgamating company ceasing to exist, it can t be regarded as a person u/s. 2(31) of the Act against whom assessment proceedings can be initiated or an order of assessment passed. Therefore, appointed date, 01.04.2013, is crucial in this case. As on 31.03.2013, the assessee company had only 26% of equity shares in the transferor company, and therefore, the provisions of section 2 (1B) r.w.s 72A of the Income Tax Act have not been complied with by the assessee. Since, the assessee company did not have 3/4th of the shares of the transferor company as on 31.03.2013, the appointed date being 01.04.2013, the assessee is not entitled to the claim of carry forward and the set off of loss of the transferor company as on 31.03.2013. The corresponding grounds of the assessee fail.

Issues:
1. Entitlement to claim carry forward and set off of accumulated unabsorbed losses.
2. Interpretation of provisions under Section 2(1B) read with Section 72A of the Income Tax Act.
3. Compliance with conditions specified in Section 2(1B) of the Act upon amalgamation.
4. Consideration of appointed date versus effective date for compliance assessment.
5. Binding effect of scheme of amalgamation on statutory authorities.
6. Interpretation of taxing statutes and legal position applicability.

Issue-wise Analysis:

1. The appellant appealed against the Commissioner of Income Tax (Appeals) order regarding the claim of carry forward and set off of accumulated losses. The AO disallowed the claim based on non-compliance with conditions under Section 2(1B) of the Income Tax Act, 1961. The CIT (A) upheld this decision citing strict interpretation of the Act. The appellant challenged this decision, arguing for the consideration of amalgamation conditions and the binding effect of the scheme on statutory authorities.

2. The core issue revolved around the compliance with provisions under Section 2(1B) read with Section 72A of the Income Tax Act. The AO denied the claim based on the lack of 3/4th shares of the transferor company held by the assessee on the appointed date. The appellant contended that the effective date should be considered for compliance assessment, relying on the scheme of amalgamation and previous case law.

3. The compliance with conditions specified in Section 2(1B) of the Act upon amalgamation was a crucial aspect of the case. The appellant argued that the shareholders' rights arise only upon the scheme becoming effective, emphasizing the importance of the effective date for fulfilling the statutory requirements. The authorities, however, maintained that the appointed date for amalgamation was pivotal in determining compliance.

4. The debate between the appointed date and effective date for compliance assessment was a significant point of contention. The appellant stressed the effective date of the scheme as crucial for evaluating compliance under Section 2(1B)(iii) of the Act. In contrast, the authorities upheld the importance of the appointed date, leading to the denial of the carry forward and set off claim based on the shareholding status on that date.

5. The binding effect of the scheme of amalgamation on statutory authorities was highlighted in the arguments presented. The appellant emphasized the approval of the scheme by the High Court, making it binding on all equity shareholders from the appointed date. However, the authorities focused on the shareholding status on the appointed date to determine compliance with statutory provisions.

6. The interpretation of taxing statutes and the legal position applicability played a role in the final decision. The authorities upheld a strict interpretation of the provisions, emphasizing compliance with the requirements laid down in the Act. The appellant's contentions regarding the legal position applicable to the facts at hand were considered but ultimately did not alter the decision.

In conclusion, the appeal was dismissed, affirming the lower authorities' decision to deny the appellant's claim for carry forward and set off of losses based on non-compliance with statutory provisions related to amalgamation and shareholding requirements.

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